decree provided that the plaintiff might, with- | one for the benefit of the other in such man. out interference by the defendants, inclose within her fence the portion of the roadway extending beyond its platted limits. ner as would have given rise to the presumption that an easement existed, if the tenements had been held by different persons, then upon a conveyance of the property so used an easement will be granted to the purchaser, provided the use has been such that the easement resulting from it would be of the class known as continuous and apparent, and would be necessary for the reasonable enjoyment of the property conveyed." Eliason v. Grove, 85 Md. 225, 36 Atl. 844; Mitchel v. Seipel, 53 Md. 251, 36 Am. Rep. 404; Janes v. Jenkins, 34 Md. 1, 6 Am. Rep. 300; Oliver v. Hook, 47 Md. 301; Burns v. Gallagher, 62 Md. 462. In the case first cited the reason for the rule was stated to be that, "if at the time of the purchase of property there are visible and apparent easements and privileges annexed to it, which are necessary for its reasonable enjoyment, we must assume that they were taken into consideration when the price was agreed upon, and that the use of them was paid for." The evidence in the case showed that about a year before the plaintiff obtained her deed she entered into possession of part of the lot it describes under a lease which included an option for the purchase of the whole of the lot, and that Mr. Filon, about the same time entered into the occupancy of Mt. Holly Inn under a contract of purchase. The plaintiff's lease and option was dated June 1, 1903, while Mr. Filon's contract bore date May 27, 1903, but the testimony was conflicting as to whether the latter's possession began and was known to the plaintiff prior to her own entry as lessee upon the adjacent premises. It was shown without contradiction, however, that at the time the plaintiff exercised her option to purchase and accepted her deed the road now in litigation was an open thoroughfare in constant use by Mr. Filon, the guests of the inn, the plaintiff and the public generally; that the plaintiff gave Mr. Filon the stone from another road which extended across her ground from the Inn tract, and which she fenced in without objection from any one; that the stone so given was used in the improvement | been made having, according to the testi of the road which is now sought to be closed; and the plaintiff herself co-operated in keeping it in repair. [1] The plaintiff's case is not in any way predicated on the option to purchase contained in her lease, which is not even referred to in the bill of complaint, but is distinctly made to depend upon the terms and description of her deed. It appears that the option simply conferred the right to buy within the specified time all of lot No. 3, as shown on the plat, already mentioned, and the lines of the latter are so arranged as to apparently exclude the bed of the road in question from the limits of the lot so designated. The sole question is whether the conveyance to the plaintiff by the deed of June 10, 1904, of a lot of ground described as including half of an indicated and platted roadway, entitles her to close the road by extending her fence to its center line; and this question arises in a case in which the road, at the time of the acquisition of title by the plaintiff, was in actual, visible and continuous use as a way appurtenant to an adjoining property which was then, and had béen for a year, in possession of a purchaser under a valid and binding contract. As between Mr. Filon and his vendors there can be no doubt that an easement in the roadway which furnished access to the inn from the street railway and the public streets of the city passed to him by implication under his purchase of the property. It is well settled that, "if during the unity of The case before us is well within this principle. The road in question was not only an open and visible easement, but it was reasonably necessary as a means of access to the inn, the other road to which reference has mony, been rendered unfit for travel by the construction of a railway cut through the property about the year 1901, in consequence of which the road now in controversy was opened. It is clear, therefore, that when the plaintiff exercised her option and received her deed the roadway to which it refers was subject to an easement equitably vested in a purchaser in possession of the dominant tenement. The rights subsequently acquired by the plaintiff must be held to be subordinate to those which passed under the earlier sale, as she was fully aware of the possession of the prior purchaser and hence had constructive notice as to the nature and extent of his interest. Duval v. Wilmer, 88 Md. 66, 41 Atl. 122. [2] The original defendants, when they conveyed lot No. 3, to the plaintiff, and at the institution of this suit, had not yet parted with the land abutting on the opposite side of the road, and lying east of the Mt. Holly Inn tract, and we have yet to consider the question as to the rights of those defendants, and their successor in title, with respect to the use of the roadway as an easement appurtenant to the last-mentioned premises. The general rule is that when the owner of land intersected by an established private way of his own conveys a lot described as extending to the center of the road, the grantee takes a fee to the center and the grantor owns the other half in fee, while the grantee, by implication, takes a right of way over the half retained latter over the half conveyed. Jones on the plaintiff's right to the use of the road Easements, § 226. This rule is clearly and justly applicable to the present case, and accords to the plaintiff the same and only such rights in the road as those to which the opposite abutting owners are entitled. It appears from the record that in November, 1904, the original defendant and Mr. Filon entered into an agreement, in writing, providing for the opening of a roadway about 50 feet in width along the course of and including the platted road. The additional ground required was to be taken from the abutting land of the defendants to the south. The agreement in terms was "subject to the right" of the plaintiff under her deed from the defendants. It was argued that this was a recognition of the plaintiffs' alleged ownership of the half of the bed of the platted roadway embraced in the deed. We think it is clear, however, that the purpose of this provision was simply to respect in common with the opposite abutting proprietors in accordance with the principle we have last stated. The act of 1908, c. 583, referred to in the bill of complaint, has not entered into our consideration of the case. It was mentioned as the occasion for the plaintiff's effort to close the half of the road in which she claimed exclusive ownership, but the terms of the act do not affect the matters submitted for our determination. 'The view we have taken of the case makes it unnecessary to consider the question whether the principle of dedication is applicable to such a situation as is here presented. The exceptions to testimony filed by the respective parties need not be reviewed, as our conclusions are based upon facts and evidence as to which there is no dispute or objection. Decree affirmed, with costs. (Syllabus by the Court.) 1. EXECUTORS AND ADMINISTRATORS (§ 430*)REPLEVIN-RIGHTS OF CLAIMANT. When goods are unlawfully detained by an administrator, who has come into possession of them from his intestate, in due course of administration, and claims title to them in the right of his intestate, a person seeking by replevin to recover them has his choice of action against the detainer personally, or of suing him in his representative capacity. [Ed. Note. For other cases, see Executors and Administrators, Cent. Dig. §§ 1683-1688; Dec. Dig. § 430.*] tort resulted in the refusal to deliver possession of the chattels, such tort was committed by the defendant in his individual capacity, and the action therefore should have been brought against the defendant individually. We are referred to the following language of Beasley, C. J., in Hodge v. Coriell, 44 N. J. Law, 456: "The defendant could not be sued in his representative capacity. The law does not admit of it, and it would therefore be singular so to interpret this record as to find in it that it must be excluded by legal rules." "Even if the defendant should be personally insolvent, and the estate which he says he represents should be solvent, the plaintiff could not direct his remedy against 2. EVIDENCE (§ 374*)-DOCUMENTARY-PROOF either but only against the former." AfOF EXECUTION. The rule has not been abrogated in this state which requires papers, having a subscribing witness, to be proved by the testimony of such witness, or the witness' absence accounted for. [Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 1587-1612; Dec. Dig. § 374.*] Appeal from District Court of Jersey City. Action by Alice M. Boyle against Samuel M. Knauss, administrator. Judgment for plaintiff, and defendant appeals. Reversed. Argued February term, 1911, before GARRISON, PARKER, and VOORHEES, JJ. Queen & Stout, for appellant. McDermott & Enright, for appellee. VOORHEES, J. This is an action of replevin for diamonds, judgment being rendered for the plaintiff, who was the assignee of one Mabel Austin, whose title to the diamonds was admitted. It appeared that Austin had loaned them to Brown, the defendant's intestate, in his lifetime, with permission to wear them until she should ask for their return. She did not request their return during Brown's lifetime. Upon Brown's death, the diamonds were found among his effects, were taken possession of by the defendant, as his administrator, who afterward inventoried them, as assets of the decedent's estate. The title was assigned by a bill of sale, made by Austin to the plaintiff, after Brown's death. This paper, which had a subscribing witness, was proved by the assignor, without the testimony of the subscribing witness, whose absence was not accounted for, and it was admitted in evidence, over objection. One of the reasons assigned for reversal of the judgment is that an action of replevin may not be maintained against a defendant in his representative capacity. The defendant's insistence is that no demand was made for the return of the diamonds upon the defendant's intestate during his lifetime. Consequently no tortious act was committed by the intestate, for which his estate would be rendered liable after his death. The demand was made upon the defendant, and, if any * * * firmed 46 N. J. Law, 354. That case turned It cannot be successfully maintained that the Hodge Case is decisive of the question for which it has been cited by the defendant. Chief Justice Taney in De Valengin's Adm'rs v. Duffy, 14 Pet. 282, 10 L. Ed. 457, has so clearly and comprehensively stated the rule that we cannot do better than quote from his opinion. He says: "The second question is one of more nicety, and the cases are not entirely reconcilable to each other. There are doubtless decisions which countenance the doctrine that no action will lie against an executor or administrator, in his representative character, except upon some claim or demand which existed against the testator or intestate in his lifetime, and that, if the claim or demand wholly accrued in the time of the executor or administrator, he is liable therefor only in his personal character. But upon a full consideration of the nature, and of the various decisions on the subject, we are of opinion that whatever property or money is lawfully recovered or received by For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes the executor or administrator after the 1370, 20 Am. Dec. 593; Haythorn v. Rushdeath of his testator or intestate in virtue of forth, 19 N. J. Law, 160, 38 Am. Dec. 540; his representative character, he holds as as- Harwood v. Smethurst, 29 N. J. Law, 195, sets of the estate; and he is liable therefor in such representative character to the party who has a good title thereto. In our judgment, this, upon principle, must be the true detention it has been somewhat assimilated doctrine. In the case of a factor who sells the goods of his principal in his own name upon a credit and dies before the money is received, if it is afterwards paid to the administrator in his representative character, would not the creditor be entitled to consider it as assets in his hands, and to charge him in the same character in which he received it? The want of knowledge or the possession of knowledge on the part of the administrator as to the rights or claims of other persons upon the money thus received cannot alter the rights of the party to whom it is ultimately due. The debtor-that is to say, the party who purchased from the factor without any knowledge of the true owner, and who pays the money to the administrator under the belief that the goods belonged to the factor himself-is unquestionably discharged by this payment. Yet he cannot be discharged unless he pays it to one lawfully authorized to receive it; and the party to whom he pays cannot be lawfully authorized to receive, except only in his representative character. If he is authorized to receive in that character, why should he not be liable in that character? Again, if a note had been taken by the factor, payable to himself, and after his death his administrator sued upon it in his representative capacity, and recovered the money, would he not be liable to the principal, in the same character in which he had, by the judgment of a court, recovered the money? It would be difficult to reconcile the contrary doctrine to any sound principles of reason, or to find any countenance for it in analogous cases. We do not mean to say that the principal may not, in such cases, resort to the administrator in his personal character, and charge him de bonis propriis with the amount thus received. We think he may take either course at his election; but that whenever an executor or administrator, in his representative character, lawfully received money or property, he may be compelled to respond to the party entitled in that character, and shall not be permitted to throw it off after he has received the money, in order to defeat the plaintiff's action." This rule was followed in Newcomb v. Burbank (C. C.) 146 Fed. 400, where other cases are collected. It seems to have the approval of reason, and is especially applicable to the facts of the present case in view of the changes made in the action of replevin by our statutory law. At common law, the action of replevin could be maintained for an unlawful taking only, and until 1862, when the replevin act was amended (P. L. 1862, p. 111, Gen. Stat. p. 2771. § 2), such was the law of 80 Am. Dec. 207. But now our statute extends this form of action to an unlawful detention, and with respect to an unlawful to an action of trover in that there must be an actual conversion or a refusal to deliver, as indicative of the unlawfulness of the detention. Woodside v. Adams, 40 N. J. Law, 417. It may be that when a taking was necessary to support the action, unless such taking was proved to have been done by the intestate, no action would lie against the representative. Now here nothing unlawful was done by the intestate, but the property in question being found at the time of his death in his possession was rightfully appropriated by his legal representative. It was placed in the usual course of administration in the inventory (Orphans' Court Act [P. L. 1898, pp. 735, 737] §§ 58, 62), and thus became liable for the payment of intestate's debts, and thereafter to distribution by the administrator, among the next of kin (Orphans' Court Act [P. L. 1898] §§ 168, 169). This was sufficient justification for the representative to retain the assets of the estate against the demand of every person who could not show a better title than his intestate under whom the representative might avow. It seems clear that if the goods, while in the administrator's possession, had been purloined by a stranger, the administrator as such could have sued for their recovery in his representative capacity, and in such case would necessarily have asserted the same title, as is by this action sought to be litigated by the plaintiff. [1] We conclude, therefore, that when goods are unlawfully detained by an administrator, who has come into possession of them from his intestate, in due course of administration, and claims title to them in the right of his intestate, a person seeking by replevin to recover them has his choice of action against the detainer personally, or of suing him in his representative capacity. There was no error therefore in the action of the court below in retaining the case. [2] The next objection is that urged against the introduction in evidence of the assignment under the proof made of its execution as hereinbefore stated. The rule has not been abrogated in this state, which requires papers of that character, having a subscribing witness, to be proved by the testimony of such witness, or the witness' absence accounted for. Williams v. Davis, 2 N. J. Law, 277; Williamson v. Wright, 3 N. J. Law, 984; Hogland v. Sebring, 4 N. J. Law, 105; Paterson v. Schenck, 15 N. J. Law, 434; Corlies v. Vannote, 16 N. J. Law, 324; Worman v. Seybert, 78 N. J. Law, 176, 73 Atl. 529. It is true that Prof. Wigmore holds that (Syllabus by the Court.) MASTER AND SERVANT (§ 302*) - INJURY TO Where defendant's agent told an employé of the defendant to wash the bleeding finger of another employé, and also told him to look for bandages in a medicine chest containing medicines for first aid for persons injured in the factory and the employé so directed negligently used the contents of a bottle of carbolic in dressing the wound, by reason of which the finger was gangrened and had to be amputated, held, that a jury could infer that the use of a medicine found within the medicine chest was within the authority given by the defendant's agent to the employé to dress the wounded finger. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1219-1221; Dec. Dig. § 302.*] Error to Circuit Court, Hudson County. Action by Patrick H. Croghan against Robert J. F. Schwarzenbach. Judgment for plaintiff, and defendant brings error. firmed. Af Argued February term, 1911, before GUMMERE, C. J., and REED and TRENCHARD, JJ. Collins & Corbin, for plaintiff in error. Queen & Stout, for defendant in error. luted shape is a usual application for wounds of this character. The testimony is, however, that Kreutzer seems to have used the contents of the bottle in the medicine chest, which was 90 per cent. pure carbolic acid without any, or insufficient, dilution. The effect of this application seems to have caused a gangrenous condition of the finger, which resulted in the necessity of its amputation. The purpose of this action is to hold the defendant liable for the result of this act of Mr. Kreutzer. The exceptions sealed upon the trial were to the refusal of the trial court to direct a verdict for the defendant, and exceptions to certain portions of the charge. The point insisted upon in all these exceptions is that Kreutzer was not acting within the scope of any authority conferred upon him by the defendant, or its agent, when he applied the carbolic acid. The only authority of Kreutzer's, if it existed, was contained in the directions given him by Mr. Albach. There is no insistence by the defendant that Albach was not a representative of the defendant in his direction to Kreutzer to care for the injured finger. The insistence of the defendant is that the extent of Albach's direction to Kreutzer was that he should wash the finger of the plaintiff and apply a bandage. It is contended that the trial court erred in refusing to direct a verdict for the defendant, and erred in leaving to the jury the determination of what was said by Albach to Kreutzer, and the inference to be drawn therefrom, and leaving to the jury the question whether the words "treat the finger" or the words, "dress the finger," if used, might be understood by a reasonable man to mean that he should treat the wounded finger in the ordinary way, if there be an ordinary way, by the use of medicines as well as bandages. So the question involved is limited to the point whether there was that in the testimony which would support a theory that Kreutzer, from what Albach said to him, could have reasonably inferred that he was directed to use in his discretion any medicine found in the medicine chest. In respect to what was said by Albach to Kreutzer, it appears that he spoke to him in German, and the plaintiff, who heard the conversation, being ignorant of that language, has no knowledge of its import, except from his inference from what Kreutzer did. Mr. Albach says he told Kreutzer to wash off the finger; and Mr. Kreutzer says that Albach said to him that there was a little boy standing outside on the floor, and for him to go out to the sink and wash his finger. REED, J. The plaintiff, while employed by the defendant, had a finger injured by a pair of scissors which he used in his work. The scissors punctured his finger so that it bled. He sought a Mr. Albach, who was the superintendent of the defendant's works, and showed him his finger. Mr. Albach said to the plaintiff: "Wait, I will have that dressed for you." There was kept in the factory a medicine chest in which was kept bandages and some remedies, among which was a bottle of carbolic acid. These remedies were kept for use as first aid for persons injured in the works of the factory. This chest was in the charge of an employé named Murphy. Murphy, who had the key of the chest, was not in the factory at the time of the accident. Mr. Albach spoke to another employé named Streuter, asking him to open the med icine chest, and Streuter did so by taking out three screws. Mr. Albach also spoke to another employé named Kreutzer, a German, who proceeded to wash and bandage the finger of the plaintiff. In doing this Kreutzer be no recovery against the defendant; but, applied some of the contents of the bottle if the direction was to bandage, dress, or of carbolic acid to the injured finger. It ap- treat the wound, it was a question for the pears that carbolic acid in an extremely di-jury to say whether the inference would The trial court charged that, if that was the extent of the language used, there could |